What is Negligence?
Negligence is defined as the failure to use the same appropriate and reasonable care that a prudent person would exercise. In many personal injury cases, you must be able to prove that there was negligence and because of that negligence someone sustained real injuries. For instance, in an auto liability or personal property claim you have to prove that the owner was negligent with respect to the ownership, maintenance, or use of the property.
But negligence of a property owner isn’t the only negligence that is taken into consideration. Insurance adjusters and attorneys know that negligence by the injured person is equally as important. This is where comparative negligence and contributory negligence come into play.
In order to win a case of negligence, plaintiffs need to prove the following four things: duty; breach; causation; and damages.
- The defendant has a duty to the plaintiff to conform to the same standards of “reasonable care” that a prudent person would.
- The defendant failed that duty of care (breach of duty).
- The defendant’s failed duty of care was the proximate and actual cause of the plaintiff’s injuries.
- The plaintiff suffered injuries and is entitled to damages.
Comparative negligence deals with whether or not the plaintiff was at all negligent in the accident. Attorneys know that when juries look at who is at fault for the plaintiff’s injuries, they will be “comparing” and thinking about how much of the negligence they can attribute to the plaintiff and how much they can attribute to the defendant. It’s important to note that the defendant’s attorney has to prove that the plaintiff did not exercise the reasonable care that a prudent would, and that lack of reasonable care was a cause of the injury, otherwise no comparative negligence can be assigned to the plaintiff.
If a jury finds a defendant negligent and also finds a plaintiff comparatively negligent then the jury has to decide what percentage of the plaintiff’s injuries are caused by the defendant and what percentage is caused by the plaintiff. For instance, if a jury finds a defendant to be 70% at fault, and the plaintiff to be 30% at fault, then the joint fault will be shared by them both when a financial verdict is made. For example, if a plaintiff has been found to have suffered $200,000 in damages and the defendant is found to be 70% at fault, the plaintiff would receive $140,000 ($200,000 times 70%) in damages.
In all but a handful of states/jurisdictions, contributory negligence has been abolished. That is because it has been deemed to be unfair in that it punishes injured persons for being partially responsible for their injuries. For example, if an injured person is found to be 1% responsible in jurisdictions that still practice contributory negligence, the injured person may not receive any compensation for their injuries. Currently, Alabama, Maryland, North Carolina, Virginia, and Washington D.C. are the only jurisdictions that still use contributory negligence.
As you can see, where you live, and how negligent you are found to be will have a strong bearing on if and how much you are paid for a personal injury claim. After an accident, do your research and find an attorney who specializes in the type of injury you have. If you are injured in a car accident, find a reputable auto accident attorney. If you are injured in a hit and run, contact a reputable hit and run attorney. Finding excellent personal injury lawyers in Los Angeles, CA for example can seem like a tough battle as there are so many. It is important to look through the reviews of each lawyer you are considering to see what others had to say. A good resource is Yelp! The important thing is that if you need guidance, a great injury attorney can help.